Maryland Employers Avoid Liability: Tell Your Employees “Don’t Dial and Drive!”

Beginning October 1, 2009, it will be against the law in Maryland to write or send a text message while operating a motor vehicle in the travel portion of the roadway (House Bill 72 and Senate Bill 98). A violation of this law is a misdemeanor and subjects the violator to a $500 fine. To date, Maryland has not joined the many states that have also outlawed talking on a cell phone while driving without the use of a hands-free device.

If cell phone use while driving is not expressly outlawed, do employers need to worry if their employees conduct business on a cell phone while driving? The answer is: Definitely! Even though speaking on a cell phone while driving is not against the law, an employer can be held liable for the consequences of an employees’ use of a cell phone, or any other communication device, while driving.

Not all rules of law are codified. The majority of the rules governing employer liability for the acts of their employees are common law rules developed through case law long before cell phones were even a concept. The governing rule is that employers can be held liable for the negligent acts of their employees, if the employee was acting within the scope of their employment at the time of the incident and resulting harm occurred. For years, courts have affirmed the viability of claims against employers for the consequences of their employees' use of cell phones to conduct business while driving. Employers, including a national law firm, have been sued for millions of dollars for claims such as wrongful death and they have paid substantial sums to injured parties. As cellular phone use continues to rise so does the number of accidents and the related litigation.

Through implementation of a clear written policy, Employers should communicate to their employees that they shall not attempt to conduct business by cell phone while driving, at least not without a hands-free device. A policy that clearly prohibits cell phone use (and now texting) while driving, expressly defines the employees' scope of authority. If the employee then breaches the policy, the employer can better avoid liability by showing that the employee was acting outside the scope of his authority when the incident occurred. While the employee may have personal liability to the third party, the employer is more insulated.

Employers may also protect their companies, if they are sued by a victim of an accident caused by an employee while texting or using a cell phone, by obtaining relatively inexpensive “Hired and Non-Owned Vehicle Liability” insurance coverage, which protects the named insured company for employees' use of their own personal vehicles or vehicles rented on behalf of the employer.

If you would like assistance updating your employee manual to include a cell-phone-use and texting-while-driving policy crafted to address your particular way of doing business, please contact us.